Julio Rios Figueroa

The Mexican Constitution of 1917 granted the Supreme Court the power to handpick lower court judges and oversee their careers. For almost eight decades this capacity was not regulated. To fill this void, the justices began to take turns filling vacancies which developed into an informal institution – the so-called 'Gentlemen's Pact'. Using original archival data, we document and describe the birth and development of this practice and argue that it consolidated into an informal institution as the judiciary increased in size. We uncover the workings of this social norm that established a patronage model of judicial selection. Our analysis period ends in 1994, when a constitutional reform created a judicial council with the explicit aim of ending patronage and corruption within the judiciary.

This article maps current constitutional adjudication systems in 17 Latin American democracies. Using recent theoretical literature, the authors classify systems by type (concrete or abstract), timing (a priori or a posteriori), and jurisdiction (centralized or decentralized). This approach captures the richness and diversity of constitutional adjudication in Latin America, where most countries concurrently have two or more mechanisms. Four models of constitutional adjudica- tion are currently in use. In the past, weak democratic institutions and the prevalence of inter par- tes, as opposed to erga omnes, effects of judicial decisions, prevented the development of consti- tutional adjudication. Today, democratic consolidation has strengthened the judiciary and fostered constitutional adjudication. After discussing the models, the authors highlight the role of the judiciary in the constitutional adjudication bodies, the broad range of options existing to initiate this adjudication process, and the prevalence of amparo (habeas corpus) provisions.

This Article studies amendment processes, their specific characteristics, and how these characteristics shape institutional design outcomes. Amendment processes are in between the extraordinary creation of new constitutions and the ordinary process of lawmaking. Our central claim is that the design of institutions through amendments is influenced by variables that do not regularly figure in the analysis of constitution making because of their bias toward new constitutions and the “politics of the extraordinary.” In particular, we argue that the design of the existing institutions and the political leverage of actors that do not participate directly in constitutional reform may exert an important influence in the design of institutions created by amendments. In other words, the more institutional power and political leverage actors have, the more likely the amendment will reflect their interests, even if they do not partake of the constituent body. To explore this hypothesis, we analyze the leverage that supreme courts have to shape the amendment processes that adopt or reform judicial councils. We claim that the more powerful supreme court judges are, the more likely they will successfully influence amendments that shape the composition and functions of judicial councils in a way that serves their interests. We offer empirical evidence from all the cases of amendments that created or reformed judicial councils in Latin America.

When and why can constitution-making processes be expected to produce an institutional framework that formally serves constitutionalism? Based on a simple and general typology of constituent processes that captures their legal/political character and dynamic nature, constitution-making processes controlled by one cohesive and organized political group (unilateral) can be distinguished from processes controlled by at least two different political groups (multilateral). A sample of eighteen Latin American countries from 1945 to 2005 shows that multilateral constitution making tends to establish institutional frameworks consistent with constitutionalism.